Registrar, Alcohol and Gaming Commission of Ontario v. A. Euteneier Limited O/A West Seven, 2009 CanLII 55606

ALCOHOL AND GAMING COMMISSION OF ONTARIO

IN THE MATTER OF The: Liquor Licence Act, R.S.O. 1990, c. L.19, as amended

BETWEEN:

Registrar, Alcohol and Gaming Commission of Ontario (Registrar)

-and-

A. Euteneier Limited O/A West Seven (Licensee)

DECISION

Panel: Jacqueline Castel, Board Member Allan Higdon, Board Member

Decision Date: September 24, 2009 Hearing Location: Toronto, Ontario

Alcohol and Gaming Commission of Ontario 90 Sheppard Avenue East, Suite 300 Toronto ON M2N 0A4 Phone: (416) 326-0366 Fax: (416) 326-5566 Toll Free In Ontario: 1-800-522-2876 Website: www.agco.on.ca

Appearances

Registrar, Alcohol and Gaming Commission: Joyce Taylor, Representative A. Euteneier Limited, Licensee: Norman Groot, Representative

AUTHORITIES:

1166134 Ontario In. (c.o.b. Nashville North) v. Ontario (Alcohol and Gaming Commission) [2006] O.J. No. 2567 (Divisional Court) 1166134 Ontario Inc. (c.o.b. Nashville North) and Registrar of Alcohol and Gaming Commission of Ontario et. al. (Court of Appeal) 1412407 Ontario Inc. (c.o.b. Cottage Restaurant & Lounge)(Re), [2008] O.A.G.C.D. No. 255 Casual Restaurant Systems Inc. (c.o.b. Philthy McNasty’s)(Re), [2009] O.A.G.C.D. No. 19 Casual Restaurant Systems Inc. (c.o.b. Philthy McNasty’s)(Re), [2009] O.A.G.C.D. No. 20 Club 924 Social Group (c.o.b. Andy Kapps Pub) (Re), [2007] O.A.G.C.D. No. 400 Nashville North (Re) [2004] O.A.G.C.D. No. 499

Allegations

1A hearing into Notice of Proposal (“NOP”) number 17182 dated April 16, 2009 to suspend liquor licence number 0202857 (the “Licence”), issued to A. Euteneier Limited (the “Licensee”), operating as West Seven, 530 Guelph Street, Town of Halton Hills, Norval, Ontario, L0P 1K0 (the “establishment” or the “premises”), on the basis of alleged violations of section 29 and subsections 34(1) and 45(1) of Ontario Regulation 719/90 (the “O.Reg.”), prescribed under the Liquor Licence Act (the “LLA”), was held in Toronto on August 12, 2009.

Decision

2The Board FINDS the Licensee contravened section 29 and subsections 34(1) and 45(1) of the O.Reg. and ORDERS that the Licence be suspended for a period of 9 days.

Preliminary Matters

3The Board ordered that witnesses be excluded on consent.

4Mr. Groot advised that the Licensee was admitting to all of the allegations of contravention in the NOP, but would be calling witnesses to address the remedial measures it has implemented after the contraventions.

5Ms Taylor indicated that she would like to call witnesses on the particulars concerning the contraventions, notwithstanding that the Licensee has admitted to them, because she believes they will be relevant to the Board’s decision on sanction. The Board allowed Ms Taylor to call witnesses on the particulars of the contraventions, but indicated that it was not prepared to hear the same evidence from multiple witnesses, given the Licensee’s admission. Ms Taylor also indicated that she had no prior knowledge that the Licensee would be admitting to all of the allegations. The Board, however, noted that the Licensee had indicated on the Hearing Request Form that it admitted to some or all of the allegations in the NOP.

Registrar’s Evidence

6Carla Noseworthy was an inspector with the Alcohol and Gaming Commission of Ontario (“AGCO”) at the time of the infractions and is currently a constable with Peel Police Services. She arrived at the establishment at 10:59 p.m. on October 18, 2008 with Constable Siebert and Inspectors Higuera and Giorgoudakis. Inspector Noseworthy and Giorgoudakis were working in an undercover capacity and entered through the front doors. Constable Siebert and Inspector Higuera waited in an unmarked police van in the parking lot.

7Inspector Noseworthy observed a mixed tumbler and a bottle of Canadian on the sink in the women’s washroom at 11:38 p.m. The establishment does not have an endorsement permitting beverage alcohol to be brought into the washrooms. She also observed a male patron carry a bottle of Budweiser from the main floor upstairs, where there is a secondary bar. The establishment also does not have an endorsement permitting beverage alcohol on the stairs. Security was not present outside the bathroom or at the stairwell to ensure that customers do not bring beverage alcohol into the bathrooms or on the stairs.

8From the time she entered until roughly midnight, the establishment was playing country music and a number of people were line dancing on the dance floor on the first floor. At about midnight, a DJ began playing top 40 hits and the clientele became younger. Many of the customers who were line dancing earlier had left by this time.

9At approximately 1:10 a.m., Inspector Noseworthy observed a female patron exhibiting signs of intoxication on the dance floor. She was holding a bottle of beer, stumbling, unsteady on her feet, and her eyes were half shut. Shortly afterwards, she observed the same female in the washroom vomiting. When the woman exited the bathroom stall where she had been vomiting, Inspector Noseworthy asked her if she was ok. She responded “yeah” in a low and slurred tone, and then exited the bathroom. A friend bought her a bottle of water. A few minutes later, the woman re-entered the bathroom and began vomiting again. About fifteen minutes later, the female was standing outside the bathroom, swaying from side to side and texting on her cell phone. She appeared disoriented and was being taken care of by her friend. There was a Security Officer standing fifteen feet away from the woman, with a clear, unobstructed view, who took no action.

10At approximately 2:05 a.m. Inspector Noseworthy observed a male patron, approximately 19 to 21 years of age, sitting on the chair beside the exit to the patio. His eyes were bloodshot and half closed. He almost fell off his chair on several occasions. A Security Officer stopped and conversed with him. She observed the male nod his head, while drinking from a bottle of Heineken. Security left the male and went out onto the patio and began smoking. The male patron stood up. While doing so, he had to grab the table to steady himself. He appeared confused. He then staggered a few steps. At 2:13 a.m., he undid his pants, turned around and urinated beside the table by the main patio. Approximately 10 to 15 patrons saw this take place, several of them making comments such as “he’s hammered” and “he must be really drunk”. A patron advised Security about the male urinating and Security then approached him. At the same time, a friend of the male came running inside and helped him to exit the bar.

11At 2:30 a.m. a small fight erupted on the dance floor. Security quickly put a stop to the fight and required the patrons who were fighting to exit the establishment.

12Inspector Noseworthy exited the establishment at 2:38 a.m.

13On cross-examination Inspector Noseworthy indicated she was wearing jeans and a brown and turquoise tank top when conducting the inspection.

14She used her cell phone to take notes inside the establishment. She made more detailed notes in the van after exiting. She informed Inspector Higuera and Constable Siebert of her observations and they subsequently attended the establishment to inform the manager on duty of the infractions.

15She has not attended the establishment since October 18, 2008.

16Helen Giorgoudakis has been an AGCO inspector since February 25, 2008. She has not attended the establishment since October 18, 2008.

17On cross-examination, she indicated she used her blackberry to take notes inside the establishment. She made handwritten notes of her observations when she returned home the same evening. She is not aware of anyone making notes in the van.

18Amanda Higuera has been an AGCO inspector since May 17, 2004. On October 18/19, 2008, she waited in a police van with Constable Siebert, while Inspectors Noseworthy and Giorgoudakis attended the establishment in an undercover capacity. Inspectors Noseworthy and Giorgoudakis sent her text messages, while inside the establishment, describing the contraventions they observed.

19Inspector Higuera entered the establishment at 2:48 a.m. on October 19, 2008, after Inspectors Noteworthy and Giorgoudakis completed their undercover inspection. She observed numerous signs of service on the ledge around the dance floor and on the bar tops. The signs of service included bottles of beer and plastic cups with remnants of beer in them. She did not observe anyone clearing the signs of service.

20She informed Mr. Simon Euteneier, the manager in charge that evening and the owner’s son, of the infractions she and her colleagues observed. Regarding the failure to clear the signs of service, he indicated that he did not know there was a requirement to have the signs of service cleared if all of the patrons had exited the bar. Inspector Higuera recommended to Mr. S. Euteneier that he obtain a washroom, hallway and stairwell endorsement, which would permit beverage alcohol in these locations of the establishment. Mr. S. Euteneier admitted that the patron urinating in the establishment was intoxicated. He made the comment that out of 400 patrons in the establishment, two “slipped through the cracks”.

21Mr. S. Euteneier became the manager of the establishment in January or February 2008. After he became the manager, Inspector Higuera met with him to discuss the Licensee’s responsibilities under the LLA and to provide him with AGCO Tip Sheets respecting certain infractions. Ms Linda Jean is currently the manager of the establishment.

22Since Ms Jean has become the manager, Inspector Higuera has not noticed any improvements in the establishment’s compliance record. In fact, she has observed seven infractions since October 18, 2008 and they are currently being reviewed by the Deputy Registrar. She has met with Ms Jean and members of Halton Police on two occasions, the first occasion was shortly after Ms Jean became the manager, and the second occasion was in the spring of 2009. Halton Police indicated they did not have the manpower to attend the establishment every weekend. Halton Police is also opposing an application by the Licensee for increased capacity. They also discussed infractions observed by Inspector Higuera and Halton Police including disorderly conduct, overcrowding, over-service, failure to control the premises (inside and out), as well as possible solutions to these problems. The Licensee has implemented some of their suggestions such as using mechanical counters and changing the uniform of Security.

23On cross-examination, Inspector Higuera stated that she attended the establishment seven or eight times while Mr. S. Euteneier was the manager. She spoke to the owner at Halton Police station after the infractions. She was aware that the owner had a concern about how his son was managing the bar.

24She has not observed alcohol being taken up and down the stairwell since the incident of October 18/19, 2008, nor has she observed beverage alcohol in the washrooms.

25Her main concerns regarding the establishment since the incident are drunkenness, over-crowding and disorderly conduct or fights between patrons. The Licensee does not appear to have control over the premises. In her opinion, the compliance issues at the establishment are worse, under Ms Jean’s management, than they were when Mr. S. Euteneier was the manager.

26Sonya Siebert is an OPP sergeant and at the time of the inspection she was a constable. She has been a member of the OPP for 19 years.

27She entered the establishment at 2:58 a.m. on October 19, 2008. In the women’s washroom, she observed an empty bottle of Molson Canadian and an empty plastic cup on the counter of the sink.

28Although she supervises Inspector Higuera, she is not primarily responsible for conducting liquor inspections and has no knowledge of Inspector Higuera’s other dealings with the establishment.

Licensee’s Evidence

29Andrew Adams is 22 years of age and has been employed as a Security Officer at the establishment since August 2008. He was previously employed as a Security Officer for Boston Pizza. He has taken Smart Serve and is a licensed Security Officer.

30When Simon (could not recall last name) was the manager, he found it very frustrating working in Security. There were only four or five other Security Officers employed at the establishment and most of them had no experience. There were a lot of fights between patrons and Security was limited in terms of what they could do to stop the fights. Simon was replaced by Adam and Jody in about October or November 2008, when Simon resigned to become a police officer. Steve Vujnovic is now the head of Security and Linda Jean is the General Manager.

31Since Ms Jean took over as General Manager a number of changes have been implemented including:

• “No Alcohol Beyond this Point” signs for the front doors, the bathrooms and stairs;
• mechanical counters;
• new Security uniforms;
• new and more experienced Security staff; and
• the hiring of more Security Officers.

There are fewer incidents than before relating to drunkenness and overcrowding. The establishment has a good relationship with Halton Police.

32On cross-examination, Mr. Adams indicated he was working on October 18/19, 2008.

33Initially he indicated that working at Boston Pizza as a Security Officer was similar to working at the establishment. However, he acknowledged that Boston Pizza is a restaurant with a bar and has no dance floor. He also acknowledged that the establishment is known for line dancing and appeals to a younger crowd later in the evening. The dance floor on the main floor is the principal attraction at the establishment, not the service of food. The establishment also has a higher capacity than Boston Pizza.

34With the exception of Smart Serve training, he has not received any training from the management of the establishment on dealing with intoxicated patrons. He does not normally deal with the AGCO inspectors when they find infractions.

35He is now the second head of Security.

36He is not aware of the issues with the AGCO or Halton Police except for the ones he witnessed in October 2008.

37Stjepan Vujnovic is 30 years of age and has worked at the establishment, on and off, since 2004. He resigned from the establishment in 2007 because the new manager, Simon Euteneier, did not know how to run a bar and he did not feel safe working there. There were fewer than five Security Officers working under Simon. Currently, there are approximately eleven Security Officers and they range from 28 to 34 years of age. He returned to the establishment as head of Security when Ms Jean took over as General Manager in November 2008.

38The changes which have been implemented since Ms Jean took over as General Manager include:

• number of Security Officers doubled;
• Security is less aggressive and “talks people out”;
• strict “no touch” policy;
• Security stationed at various locations to prevent alcohol from entering hallways, washrooms and stairwell;
• mechanical counters for Security Officers in all areas of the establishment;
• two Security Officers patrolling parking lot to ensure no one is drinking outside before entering the establishment;
• an experienced doorman checks ID of anyone who looks under 25, including the photo on the ID to confirm it resembles the person presenting it. If the photo does not resemble the person presenting the ID, he makes them sign their name to confirm their signature is the same as the one on the ID.

The establishment is now much safer, cleaner and a better place to work. Police who patrol the parking lot have told him they appreciate what the Licensee has done to turn the place around and that there is much less violence now.

39According to Mr. Vujnovic, the Licensee has implemented all of Inspector Higuera’s recommendations.

40Mr. Vujnovic indicated he is not aware of any complaints from Halton Police. He is aware of one complaint about excessive drinking but the individual in question was not in the establishment. Inspector Higuera told him the establishment was over-crowded on the main floor once in 2009. As a result, some customers were immediately sent upstairs. In response to Inspector Higuera’s recommendation, Security was also given mechanical clickers at every station of the establishment; as such, Security knows how many people are in each area of the bar at all times.

41The police have raised concerns about the number of people leaving the bar at once on a Saturday night. As a result, he sends most of his Security staff outside at closing time and they tell customers to go right to their cars or get a taxi.

42There are 11 Security Officers at the establishment and they have on average four or more years of experience.

43On cross-examination he indicated that Andrew is 21 and he believes Andrew and possibly one other Security Officer are the only ones outside the average age range of 28 to 34. He estimated that Andrew has four or five years of Security experience.

44He is not aware of all of the complaints from Halton Regional Police. He is aware of two AGCO inspections, one relating to over-crowding and the other relating to a person under 19 in the establishment.

45His main responsibility as head of Security is to ensure that there is no violence in the establishment. He believes that the establishment has improved because the level of violence has decreased.

46He has not provided his Security staff with written materials regarding dealing with intoxicated patrons. He has taken his Security staff on training courses in addition to Smart Serve.

47Linda Jean is 60 years of age. She was a shopping centre manager for approximately 10 years. Subsequently she was hired as Mr. Euteneier’s residential property manager and then as his commercial property manager. In January 2009 she became the General Manager of the establishment.

48The former General Manager of the establishment left a lot of things in disarray. Since becoming General Manager she “cleaned up” the establishment, repainted, added a full-service kitchen, fixed the lighting and air-conditioning, added rails on the dance floor, increased Security staffing, hired a new head of Security and addressed Security issues. She believes that Security is the heart of the establishment. She has staff meetings every Saturday and more often if there is a problem.

49Corrective measures involving Security or LLA compliance taken in 2009 include:

• in the process of purchasing more modern walkie-talkies/radios for staff;
• obtained new/improved counters;
• added new signage regarding no alcohol beyond certain points;
• purchased new Security uniforms;
• hired bussers to continually remove glasses and ensure that clean-up is not left for 2:00 a.m;
• added Security staff outside to watch for individuals who are drinking and then trying to secure entry;
• posted Security around the main dance floor to ensure no over-crowding; and
• control traffic outside the bar.

Whenever Inspector Higuera raises issues with her, she ensures that they are addressed within the week.

50On cross-examination, she indicated that she attended an informal meeting with the Halton Police at the Georgetown detachment. She initiated the meeting to introduce herself to them.

51She admitted that the focus of her prior experience has been on property management. The establishment is the only night club she has ever managed.

52She is planning to apply to the AGCO for an endorsement to allow beverage alcohol in the washrooms, hallways and stairwells.

53Albert Euteneier is 80 years of age and the owner of the establishment.

54Mr. Euteneier took the former tenant (Nashville North), who operated the establishment, to court and had it evicted.

55He replaced his son Simon as the manager because he was not experienced enough to run a bar.

56He takes responsibility for the contraventions. He indicated that he has taken steps to ensure that they do not happen again. He wants to work with the AGCO inspectors to improve the premises.

57On cross-examination, he indicated that he brought in Ms Jean because he has worked with her for many years and he trusts her. Although he delegated management of the premises to Ms Jean, he participates in how it is run. He does not, however, deal with staff on a day-to-day basis. He mainly keeps in touch with the operation of the establishment through Ms Jean.

58Jim Mantioney is 38 years of age and works as a part-time bartender at the establishment. Since Simon resigned, he manages the bartenders.

59He is aware of the incidents of October 18/19, 2008. The establishment has taken the following steps to ensure that these incidents do not occur again. New management is vigilant about following the rules. Concerns are dealt with right away. For example, Inspector Higuera wanted Security staff to know the count in each area of the establishment. Within a few days of her making this request, new counters were provided to Security in each area.

60He meets regularly with the bartenders and ensures they follow the rules.

61On cross-examination, he admitted he has not had any training except for Smart Serve.

62He denied that the changes introduced by Ms Jean focused on making the property look better and indicated that she has addressed a lot of legal issues pertaining to alcohol, so that the establishment is safer for patrons.

63He is only in charge of the bartenders when he is working.

Decision and Reasons

64In an oral decision, the Board FOUND the Licensee contravened section 29 and subsections 34(1) and 45(1) of the O.Reg. Reasons for these findings are as follows.

Section 29, O.Reg.

65Based on the uncontested evidence of Inspector Higuera that at 2:48 a.m. there were numerous signs of service on the ledge around the dance floor and on the bar tops, including beer bottles and plastic cups with remnants of beer, the Board FINDS the Licensee failed to clear the signs of service and consumption by 2:45 a.m., in contravention of section 29 of the O.Reg.

Subsection 34(1), O.Reg.

66Since the establishment does not have an endorsement to permit beverage alcohol in the washrooms or stairwells, based on Inspector Noseworthy’s uncontested evidence that she observed a mixed tumbler and a bottle of Canadian on the sink in the women’s washroom, as well as a male patron carry a bottle of Budweiser from the main floor upstairs, the Board is satisfied that liquor was removed from licensed areas of the establishment.

67Based on Inspector Noseworthy’s uncontested evidence that Security was not posted at the doors of the washrooms or by the stairwell to ensure that liquor was not brought onto these areas, the Board FINDS that the Licensee permitted the removal of liquor from licensed areas of the establishment by failing to implement reasonably diligent measures to prevent same, in contravention of subsection 34(1) of the O.Reg. The Licensee ought to have known that liquor would be brought onto these areas, given the type of establishment and clientele, and in the absence of having Security stationed in or otherwise monitoring these areas to prevent same.

Subsection 45(1), O.Reg.

68Based on Inspector Noseworthy’s uncontested evidence regarding the physical condition and behavior of the female patron, who vomited in the bathroom, and the male patron, who urinated beside a table on the main floor of the establishment, the Board is satisfied that these two patrons were drunk.

69Based on Inspector Noseworthy’s uncontested evidence that there was a Security Officer standing 15 feet from the female intoxicated patron, with an unobstructed view, who took no action in respect of the patron, the Board finds, on a balance of probabilities, that the Security Officer knew, or ought to have known, that this female patron was drunk and thereby permitted same.

70Based on Inspector Noseworthy’s uncontested evidence that a Security Officer conversed with the male intoxicated patron, while he was seated and shortly before he urinated by the table, and then proceeded onto the patio for a smoke without removing the patron from the establishment, the Board finds that the Security Officer knew, or ought to have known, that this male patron was drunk and thereby permitted same.

71Therefore, the Board FINDS the Licensee permitted drunkenness on the part of two patrons, in contravention of subsection 45(1) of the O.Reg.

Registrar’s Submissions on Sanction

72The Board requested written submissions on sanction within specified time periods, with the consent of both parties. These submissions were reviewed and considered.

73The Registrar submitted that a 14 day suspension is appropriate due to the notorious history of the prior operator.

74The Registrar attached the decisions of Nashville North (Re) [2004] O.A.G.C.D. No. 499, 1166134 Ontario In. (c.o.b. Nashville North) v. Ontario (Alcohol and Gaming Commission) [2006] O.J. No. 2567 (Divisional Court), and 1166134 Ontario Inc. (c.o.b. Nashville North) and Registrar of Alcohol and Gaming Commission of Ontario et. al. (Court of Appeal). The Registrar submitted that the aforementioned decisions show that the operations of Nashville North created a dangerous environment in the small community. The quiet enjoyment of the home lives of the residents was severely disrupted. As a result, the licence was revoked.

75Nashville North’s history was well known to the present Licensee. The Licensee knew what problems could be generated by this club and its impact on the village. The Licensee not only had special and intimate knowledge of the potential problems, but also had an obligation to and a pact with, the residents, the AGCO and local police services to not cause violations to occur again.

76A 14 day suspension would be an effective specific deterrent to remind the Licensee of its responsibilities, not only under the law but to the local community.

Licensee’s Submissions on Sanction

77The Licensee submits that a suspension between three to six days would be the appropriate sanction. A sanction of this duration would serve as a specific and general deterrent, while also acknowledging the efforts being made by the new management to operate in compliance with the LLA and regulations.

78The Board should not rely on cases relating to the prior operator, Nashville North, as they apply to a prior licensee and have no bearing on the present case. The Registrar also did not lead any evidence about the Nashville North cases or provide copies of them to the Licensee prior to or at the hearing on August 12, 2009. There was also no evidence of the “pact” not to cause violations in the future, between the present Licensee, residents, the AGCO and local police services, which was referenced in the Registrar’s submissions.

79The Board should infer a lack of commitment to this case by the Registrar as a result of Mr. Kulis, as opposed to Ms Taylor, making the Registrar’s submissions.

80The Licensee admitted to the contraventions and accepts that they are serious. However, the account of how Inspector Noseworthy created her notes lacks credibility and demonstrates the risk that the Registrar’s counsel overstated her case.

81The Licensee accepted responsibility for the contraventions, showed remorse, changed its management and implemented improvements. These are all facts that the Board has found to be mitigating in other cases.

82The Licensee is committed to operating in compliance with the LLA. The Licensee is not a renegade gang of civil deviants drawing neighbourhood complaints, as was the case with Nashville North. The Licensee is comprised of considerate and concerned business people who are attempting to provide socially responsible entertainment and employment to the community in which it is based.

83Cases where 14 day suspensions were applied involved factors not found in the present case. In 1412407 Ontario Inc. (c.o.b. Cottage Restaurant & Lounge)(Re), where a 14 day suspension was imposed, the violations were blatant, the manager or person in charge obstructed the investigation, no measures were taken before, during or after the violations which could mitigate the sanction, and the licensee failed to take responsibility for the contraventions. In the present case, there was no obstruction and the Licensee has, in fact, attempted to work with the AGCO and staff. In contrast to the licensee in the Cottage Restaurant and Lounge case, the Licensee in the present case provided particulars about the changes it has made to its practices to prevent or minimize the likelihood of contraventions of this nature occurring in the future. Mr. Euteneier took responsibility for the infractions before the Board and Ms Jean has implemented positive steps to rectify shortcomings.

84In the Club 924 Social Group o/a Andy Kapps Pub (Re), where the licensee was found to have permitted drunkenness in violation of subsection 45(1) of the O.Reg., the Board decided, given the need to send a strong message and for general and specific deterrence, that a 3 day suspension was appropriate. The Board noted, in this case, that while drunkenness is a serious breach, the licensee had no previous adverse history with the Board. This is the present Licensee’s first time before the Board as well, and for the same reason, the Licensee submits a 3 to 6 day suspension is appropriate.

85In the Casual Restaurant Systems Inc. (Philthy McNasty’s) (Re) case, which involved permitting drunkenness and disorderly conduct on adjacent property, in violation of subsection 45(1) and section 45.1 of the O.Reg., the Board imposed a seven day suspension. The breach involved five separate incidents on the night in question, with a number of aggravating factors, including insufficient security and failure to assist police officers called to the scene. Counsel for the Registrar had proposed a ten day suspension in this case, but the Board considered a number of mitigating factors, including the licensee putting a new team in place, retraining of existing personnel, implementing a strict policy regarding enhanced security in the parking lot, and the fact that there had been no property damage, injuries or arrests arising from the incidents.

Reply Submissions

86The fact that Mr. Kulis was not present at the hearing is irrelevant. Mr. Kulis tendered submissions because Ms Taylor was not available. Mr. Kulis is very familiar with the establishment.

87The Nashville North decisions are case law and the Registrar is entitled to rely on them when making submissions on sanction. Further, Mr. Euteneier testified that he was aware of the issues leading to the revocation of Nashville North’s liquor licence.

88If the Licensee had concerns about Inspector Noseworthy’s credibility, it should have demanded a full hearing and put her evidence to the test.

89The Licensee has not improved its operations under Ms Jean. Her background is in managing “bricks and mortar”, not licensed establishments. The improvements noted by Ms Jean largely relate to the condition of the building and the grounds, not to the operation of the nightclub. Hiring a manager, who has never been in charge of a nightclub before, is not a mitigating factor.

90The Cottage Restaurant decision is a good precedent for this case, although it involved a substantially smaller premise with patrons who, while very intoxicated, did not exhibit the extreme level of intoxication in the establishment as was the case at West Seven. Neither of the other cases cited by the Licensee are on point.

91While the Licensee has acknowledged some responsibility it has not acknowledged the full extent of the problem.

92One week after the Reply was received, the Licensee forwarded “supplemental submissions” on the ground that the Registrar’s submissions did not constitute a proper reply. According to the Licensee, Ms Taylor reviewed evidence and re-argued the Registrar’s case in her Reply and this should have been done in the original submissions. The Registrar objected to the filing of supplemental submissions and asked that they not be considered by the Board on the ground that the Registrar’s Reply submissions were in direct response to the Licensee’s submissions. Ms Taylor also argued that the Board set out the procedure for filing submissions at the hearing, the Licensee did not object to the procedure, and the circumstances do not justify deviating from the procedure.

Decision and Reasons on Sanction

93The Board did not consider the Licensee’s “supplemental submissions” which were in essence a response to the Registrar’s Reply submissions. The Board found that the Registrar’s Reply submissions followed procedure and responded to issues raised by the Licensee in its submissions. If Mr. Groot believed that certain information in the Reply should have been raised in the Registrar’s original submissions, he should have identified this information and asked that it be stricken or not considered, as opposed to filing his own set of supplemental submissions. Furthermore, as mentioned in paragraph 72 above, at the conclusion of the hearing, a procedure for written submissions was set out by the Board and agreed to by the parties. There was no provision made for any party to make further submissions, and the Board, in the circumstances, declines to amend the procedure set out and agreed to by the parties.

94The Board will now address certain assertions contained in the Licensee’s submissions. Mr. Groot asked the Board to draw the inference that the Registrar lacks commitment to this case from the fact that Ms Taylor, the counsel who represented the Registrar at the hearing, did not prepare the Registrar’s submissions on sanction. While there was an issue with the timeliness of the Registrar’s submissions, which was dealt with by the Board, the Board will not draw an inference from this that the Registrar lacks commitment to the case. In addition, the Board notes that Mr. Kulis is also Registrar’s Counsel and Deputy Director of AGCO Legal Services.

95Mr. Groot also submitted that the Board should not rely on the Nashville North case, in part, because the case was not disclosed by Ms Taylor at or prior to the hearing. The Board’s Rules of Practice on disclosure do not apply to case law, which is in the public realm. Counsel may rely on case law in submissions without disclosing the cases prior to the hearing or at the hearing, in the same way that Mr. Groot relied on case law in his submissions which was not disclosed at the hearing. The Board agrees, however, that no evidence was led regarding a “pact” between the Licensee, the AGCO, the police and the community, which Mr. Kulis referenced in submissions, nor did Mr. Kulis provide any particulars in submissions about this pact. As such, the Board did not place any weight on the reference to there being a pact not to commit any contraventions.

96Mr. Groot submitted that the way Inspector Noseworthy created her notes lacked credibility and demonstrates the risk that the Registrar’s counsel has overstated her case. The Board did not take issue with the manner in which Inspector Noseworthy created her notes. The Board also found it inappropriate for the Licensee to question Inspector Noseworthy’s credibility, when the Licensee stated at the outset of the hearing that it was admitting to all of the allegations and simply intended to address the corrective measures the Licensee implemented after the incident.

97Now turning more specifically to the Board’s decision on sanction. There were three contraventions in this case. The Board considers the contravention of subsection 45(1), on the part of two patrons, to be the most serious of the three contraventions, in the circumstances. The two patrons exhibited pronounced signs of intoxication and Security, if it had been acting diligently, should have detected, properly assessed, and evicted them earlier.

98The facts of this case were, however, much less serious than those in the Nashville North case, which led to the revocation of the prior owner’s licence. In that case, the Board found the Licensee permitted drunkenness on the part of 23 patrons on seven different dates (in violation of subsection 45(1) of the O.Reg.), served beverage alcohol to 12 of the 23 drunken patrons (in violation of s. 29 of the LLA) and permitted overcrowding on three different dates (in violation of s. 43 of the O.Reg.). There was also no evidence that the Licensee in the present case disrupted the quiet enjoyment of residents in the community, as occurred in the Nashville North case.

99While the Licensee is not responsible for the contraventions of the prior owner of the establishment, the Licensee acknowledged being aware of the prior owner’s disciplinary history. Like all licensees, this Licensee had an obligation to comply with the law and it had specific knowledge of the potential consequences for non-compliance.

100Nevertheless, the Board finds the 14 day suspension proposed by the Registrar to be too harsh, given that the Licensee admitted to all of the allegations at the hearing, showed considerable remorse, and has implemented corrective measures to minimize the likelihood of these types of contraventions occurring in the future. The Board heard quite a bit of evidence regarding the changes at the establishment since Ms Jean took over. The remedial measures specifically designed to prevent the contraventions which occurred in this case include:

• posting “No Alcohol Beyond This Point” signage at the exits, stairwell, and washroom doors;
• posting Security at the washroom doors and stairwell to ensure that patrons do not take alcohol onto these areas;
• changing the management of the establishment;
• increasing the number of Security staff;
• adding bussers to continually clear the signs of service; and
• having Security patrol the parking lot to ensure that patrons are not drinking before entering the premises.

Contrary to Ms Taylor’s assertion that the improvements largely relate to the condition of the building, the above corrective measures relate to the nightclub and LLA compliance.

101The Board heard evidence from Inspector Higuera, the only one of the four individuals involved in the October 18/19, 2008 inspection who has returned to the establishment, that there are even more problems at the establishment since the change in management. However, the Board did not place a lot of weight on this evidence since none of the subsequent allegations have come before the Board or been proven. Inspector Higuera did admit on cross-examination that she has not observed any issues with alcohol being removed from licensed areas of the establishment since October 18/19, 2008.

102The Board believed the evidence of the Licensee’s witnesses, particularly Ms Jean and Mr. Vujnovic, that the Licensee has cooperated with the AGCO and police and has been responsive to their suggestions or recommended changes.

103The Board disagrees with Ms Taylor that the Cottage Restaurant decision, where a 14 day suspension was imposed, is a good precedent for this case. The facts in that case were very different. There were a number of serious contraventions in that Cottage Restaurant case, but the most serious one was the obstruction of a police officer carrying out an inspection under the LLA, by locking the door of the establishment just before he arrived, by refusing to open the door of the establishment for him on two occasions, and by refusing to allow customers to leave until the police officer was believed to have departed. In keeping customers locked in the establishment, the Licensee also compromised public safety. The Board concluded in the Cottage Restaurant case that the actions of the Licensee, in obstructing the police, “represented a disregard for authority and are suggestive of a Licensee which is out of control”. The present case did not involve obstruction or failure to facilitate an inspection, nor was public safety specifically compromised by the actions of the Licensee.

104Although the Board considers a 14 day suspension to be too harsh in the circumstances, the three to six day suspension proposed by the Licensee would be too lenient. The Club 924 Social Group (c.o.b. Andy Kapps Pub) (Re) case, where a three day suspension was imposed, is distinguishable on the facts. In this case, there was only one contravention of subsection 45(1) of the O.Reg. in respect of one patron. In the present case, the Licensee contravened subsection 45(1) with respect to two patrons, and the signs of intoxication on the part of the two patrons were pronounced; in addition, the Licensee contravened section 29 and subsection 34(1) of the O.Reg. on the same evening.

105The facts of the Philthy McNasty case, which dealt with contraventions of section 45.1 and subsection 45(1), were also distinguishable, although the Board did rely heavily on the licensee’s remedial measures when imposing a seven day suspension rather than the ten day suspension proposed by the Registrar. This was also the first time the licensee had come before the Board in five years of operation. While this is the first time the Licensee has come before the Board, it has not been in business for as long as the licensee in the Philthy McNasty case.

106Therefore, in the circumstances, the Board FINDS that a 9 day suspension is appropriate from the standpoint of specific and general deterrence.

Order

107The Board ORDERS that liquor licence number 0202857 issued to A. Euteneier Limited, operating as WEST SEVEN, 530 Guelph Street, Town of Halton Hills, Norval, Ontario, L0P 1K0, be suspended for 9 consecutive days.

108The Licensee shall submit proposed suspension dates in writing to the Manager of Hearings, Hearings Department, Alcohol and Gaming Commission of Ontario at the address on the front of this decision within seven (7) days of the date of this decision. The Board will set suspension dates without further notice to the Licensee if proposed dates are not provided within that time. The suspension must be served on days the establishment normally operates. The suspension may not start earlier than twenty (20) days from the date of this decision and must be completed within ninety (90) days of this decision.

DATED AT TORONTO THIS 24th DAY OF SEPTEMBER, 2009